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United States v. Willis

United States District Court, E.D. Michigan, Southern Division

January 26, 2018

United States of America, Plaintiff,
v.
Terry Willis, Defendant.

          Mag. Judge David R. Grand

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION [195]

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE.

         On August 11, 2017, the Court issued an opinion and order granting defendant Terry Willis' motion to vacate his sentence on the grounds that two of his four prior convictions, armed robbery and assault with intent to murder, did not qualify as crimes of violence under the Armed Career Criminal Act (ACCA). (Dkt. 192.) On August 14, 2017, the United States filed a motion for reconsideration, asking that the Court reconsider in light of the Sixth Circuit's decision in Raybon v. United States, No. 16-2522, 2017 WL 3470389 at *5 (6th Cir. Aug. 14, 2017) (holding that Michigan's assault with intent to do great bodily harm qualified as a crime of violence under the ACCA). The Court concluded Raybon was controlling precedent, granted the United States' motion for reconsideration, and determined that defendant was not eligible for resentencing. (Dkt. 193.)

         On August 31, 2017, defendant filed a motion for reconsideration, asking the Court to reconsider its conclusion that defendant is not eligible for resentencing in light of additional Sixth Circuit precedent holding that breaking and entering - one of defendant's prior convictions that was not analyzed in the initial motion to vacate - cannot be considered an ACCA predicate offense. United States v. Ritchey, 840 F.3d 310, 321 (6th Cir. 2016). (Dkt. 195.)

         I. Legal Standard

         A motion for reconsideration should be granted “if the movant demonstrates a palpable defect by which the court and the parties have been misled and that a different disposition of the case must result from a correction thereof.” In re Greektown Holdings, LLC, 728 F.3d 567, 573-74 (6th Cir. 2013). “A palpable defect is one that is ‘obvious, clear, unmistakable, manifest, or plain.” Majchrzak v. Cty. Wayne, F.Supp.2d 586, 596 (E.D. Mich. 2011).

         II. Analysis

         “[AEDPA] provides a one-year statute of limitations for filing a federal habeas petition.” Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012). Specifically, 28 U.S.C. § 2255(f) mandates that a “1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of -

(1) the date on which the judgment of conviction became final,
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

28 U.S.C. § 2255(f)(1)-(4).

         In the present case, judgment was entered on July 16, 2014. (Dkt. 118.) Because defendant did not appeal, the judgment became final “upon the expiration of the period in which the defendant could have appealed to the court of appeals” which, “in the absence of an actual district court determination of good cause or excusable neglect, [is] ten days after the entry of judgment.” Sanchez-Castellano v. United States, 385 F.3d 424, 427 (6th Cir. 2004). Therefore, judgment of conviction was ...


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